Kermit Gosnell's Verdict Is Not Justice

Kermit Gosnell is a serial killer. He was found guilty today of the first-degree murder of three infants and the third-degree murder of a patient at his abortion clinic. The grand jury believes that hundreds of infants met the same end as the ones whose murders were proved in court. Let no one call this justice.

Among supporters of late-term abortion -- a small but vocal contingent -- a common reaction to the trial has been to say that restrictions on the practice drove women to Gosnell. The grand jury reached a different conclusion: There weren’t any restrictions, thanks to Pennsylvania state governments of both parties that supported legal abortion. Clinics stopped being monitored under the administration of Republican Governor Tom Ridge, who got himself a nice reputation as a moderate because of his stance on abortion.

The question that should haunt us now is not how many victims Gosnell killed, which we will never know, but how many more Gosnells there are in our country. My National Review colleague Jillian Kay Melchior uncovered evidence that a few are in Florida. In a 2006 case, prosecutors were apparently unwilling to seek justice for a murdered infant left in a trash bag to die because she had been delivered at 22 weeks gestation.

The theory that infants delivered that early have no rights -- that protecting them would conflict with Roe v. Wade -- is mistaken: The Supreme Court has never held any such thing. It may nonetheless be a widespread view. President Barack Obama, when he was a state senator, opposed legislation to protect such infants because he feared it would undermine Roe. The court has made clear, however, that as soon as a fetus makes it even partway out of the womb it becomes a baby that the law can protect.

This distinction makes no sense to many people, who wonder why the location of this young human being should make such a large difference in whether he will live or die. Two Supreme Court justices, Ruth Bader Ginsburg and John Paul Stevens, expressed this bafflement in a 2003 case. We would have a law closer to our moral intuitions if we had serious restrictions on late-term abortion. But the court itself has prevented such restrictions by insisting that they include an unlimited exception for “health,” including emotional health.

Gosnell's case ought to spur reform -- in states, which ought to make sure their abortion clinics aren't going even further than the law allows; in Congress, which ought to determine if the civil rights of infants are being adequately protected; and in the Supreme Court, which ought to revisit an abortion jurisprudence that is more extreme than is typically understood.